Since 1975, the ESA’s regulatory framework has interpreted “harm” to include habitat modification that injures or kills protected species—a stance upheld in the 1995 Supreme Court ruling Babbitt v. Sweet Home. That decision rested on Chevron deference, which allowed courts to defer to agencies’ interpretations of statutes they administer.

But the 2024 decision in Loper Bright v. Raimondo overturned Chevron, requiring courts to determine statutory meaning independently. Though Sweet Home remains precedent, the Services now argue that “take” under the ESA should not cover habitat-only harm, contending they must apply the “single, best meaning” of the statute. Notably, no new definition for "harm" is being proposed.

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Implications for Public and Private Projects

The rollback could have sweeping effects across sectors such as energy, utilities, and transportation:

Water Infrastructure: Projects in Western states, including reservoirs and delivery systems, often require ESA permits due to habitat disruption.
Renewable Energy: Solar and wind farms could be built in critical habitats without federal review, provided no listed species are present.
Telecom and Waste Management: Infrastructure on potential habitats may proceed without ESA compliance under the new rule.

Critics, like the Center for Biological Diversity, warn this could “open the door to development in areas essential for species recovery.” Yet industry advocates argue that the change reduces overreach and allows for faster, lower-cost permitting.

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Uncertainty for Conservation and Compliance

Environmental attorneys warn the change could sow confusion among regulators and developers. States like California and Washington have built habitat conservation plans based on current federal definitions, potentially creating compliance gaps if the rule diverges from those plans.

A 2024 study by the Environmental Law Institute found that more than 70% of recent incidental take permits were tied to habitat degradation rather than direct harm—indicating how widely this rollback could alter ESA enforcement.

What Happens Next?

The Services will analyze public feedback after May 19, with a final rule potentially issued by late summer 2025. Legal challenges are expected, as are sharp divisions among stakeholders. Conservation groups fear long-term damage to biodiversity recovery efforts, while developers hope for regulatory clarity and cost savings.

How “harm” is defined under the ESA will influence not only environmental law but also the path forward for American infrastructure in an age of ecological uncertainty.

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